Indictment No. CR-17-00007917-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ALAM BUOC
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE R. MARANGER
on October 13, 2020, at OTTAWA, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1C) OF THE CRIMINAL CODE BY ORDER OF JUSTICE OF THE PEACE L. PEARSON, ONTARIO COURT OF JUSTICE AND SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF JUSTICE R. MARANGER, SUPERIOR COURT OF JUSTICE DATED JULY 18, 2019.
APPEARANCES :
J. Cavanagh/S. Goldfarb Counsel for the Crown J. Foord Amicus Curiae Alam Buoc Self Represented
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 517(1C) OF THE CRIMINAL CODE BY ORDER OF JUSTICE OF THE PEACE L. PEARSON, ONTARIO COURT OF JUSTICE AND SECTION 486.4 OF THE CRIMINAL CODE BY ORDER OF JUSTICE R. MARANGER, SUPERIOR COURT OF JUSTICE DATED JULY 18, 2019.
PAGE
Reasons for Ruling 1
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically
Transcript Ordered: March 15, 2021 Transcript Completed: March 22, 2021 Ordering Party Notified: March 22, 2021
TUESDAY, OCTOBER 13, 2020
THE COURT: Good morning.
MR. CAVANAGH: Good morning, Your Honour.
THE COURT: You can be seated Mr. Buoc.
R E A S O N S F O R R U L I N G
MARANGER J : (Orally)
This is a ruling on a mistrial. An ongoing mistrial application in the matter of R. v. Alam Buoc. This decision was postponed from October 5 to today's date.
The governing principles in determining whether to declare a mistrial can be summarized as follows: The declaration of a mistrial is something that is in the discretion of the trial judge, and should only be exercised as a last resort and in the clearest of cases. It is an acknowledgment that a fundamental flaw in the trial process has arisen, and there is no remedy but to start the trial from scratch and some future point.
It has also been said that a mistrial should only be declared in cases where there is a fatal wounding of the trial process and to the administration of justice, that cannot be cured by remedial measures.
A fair trial is not a perfect trial but, nonetheless, a trial must be fundamentally fair to an accused person and to all participants.
The background to this case is as follows:
Alam Buoc stands charged with two counts of first degree murder and one count of attempted murder. The allegations stem from a shooting incident that occurred on July 24, 2017, in the City of Ottawa. The shooting occurred in a white Mazda automobile owned by Abdul Rahman Al-Shammari.
Two men, Dirie Olol and Abdulrahman Al-Shammari died as a result of the gunshot wounds. A third person, Talal Al-Shammari survived, but was critically injured.
The evidence supports the proposition that Dirie Olol died from a shot through the head, while sitting in the front passenger seat of the vehicle. AbdulRahman Al-Shammari, the driver, was shot in the neck, then exited the vehicle, ran a short distance and bled to death from a severed carotid artery. Talal Al-Shammari was shot through the neck and twice in the shoulder, but survived. He gave a statement to the police that Alam Buoc, an acquaintance of his, was the shooter. The accused was charged on the basis of the statement.
This trial began February 10, 2020 with the jury selection. Prior to jury selection, the court heard approximately six weeks of pre-trial motions, beginning in July of 2019 and in the fall of 2019, many of them were brought by the accused - some were brought by the Crown.
From February 10, 2020 to March 16, 2020, the jury of 12 and the court heard from 18 witnesses over the course of 20 days of evidence. Eight days of that evidence was taken up by the testimony of Talal Al-Shammari. He was cross-examined at length by Mr. Buoc.
On March 13, 2020, the Chief Justice of the Superior Court of Ontario ordered that all of the Superior Courts of Justice were to be shut down on account of the Covid 19 pandemic. This decision was based on medical advice in the interest of the health and safety of any and all participants in the trial process.
On March 16, 2020, in consultation with all of the participants at this trial, including the 12 members of the jury, the trial was adjourned to August 31, 2020, in anticipation of the re-opening of the courts and, perhaps, in the hopes that the pandemic will have, to some degree, subsided.
Between March 16, 2020 and August 31, 2020, the court, counsel involved in this case, and Mr. Buoc conducted a series of trial management conferences, with a view to determining how best to proceed on August 31, 2020.
On July 29, 2020, a letter or a memo listing what were believed to be the appropriate safety measures both for the jury and for the participants in the trial, was provided to various representatives of the Ministry of the Attorney General, the Ministry who is responsible for the administration of the courts. Advice was given that courtroom 37 could be retrofitted with a series of safety measures to ensure that the trial could be run safely in the time of Covid.
Courtroom 37 was not ready on August 31st, 2020. The advice given was that it would be ready on September 21, 2020. Consequently, the trial was adjourned, once again, to September 21, 2020, to allow for the retrofitting of courtroom 37.
During the intervening months between March 16, 2020 and September 21, 2020, the court received a number of requests from various jurors concerning what measures were going to be put in place to allow them to safely in preside over this trial. Juror Number 3, a 73 year old individual with a history of respiratory problems, made a formal request in writing to be discharged from jury service on account of health reasons. A second juror, Juror Number 11, a 78 year old individual wondered whether or not the jury trial could continue remotely, given his age and that he was told to stay home because of the Covid pandemic.
On September 21, 2020, a teleconference discharge hearing was heard with respect to the 73 year old juror, who was discharged. The 78 year old juror attended and was questioned and, despite his age, he indicated that he wished to continue. The court armed with the knowledge that 90 percent of serious illnesses and deaths arising from Covid 19 involved persons who were over 70, made the difficult decision to discharge Juror Number 11 despite his bravery and willingness to continue.
On September 22nd, 2020, Mr. Buoc brought an application for the declaration of a mistrial, citing, among other things, that there was too long of an adjournment, the distraction of the physical layout of the courtroom, the concerns and distraction caused by the fear over COVID, and the fact that the jury composition was now 10 instead of 12. The Crown resisted the request. The Court denied the application at that time.
It is now October 13th, 2020, and the court and the jury have yet to hear any evidence in this matter, for since September 22nd, the following events took place:
one of the jurors had to self-isolate because one of his children had symptomology of Covid and had to be tested, and the court had to wait for the test results.
Mr. Foord, amicus, had the same thing happen to him, one of his children had symptomology, had to be tested, as did he.
On the weekend of September 25, 2020, Juror Number 12 was involved in a bicycling accident and suffered a concussion injury. He is here today and his medical status is not clear. There is no medical report that has been offered.
Juror Number 10, whose employment ran out on August 31, 2020, wrote to the jury coordinator in Ottawa, the following:
Good afternoon, Janice. I'm having an issue with employment. Unfortunately, my contract with the City ended in late August. I've been looking for work since then. I'm really in a bind here. I don't know what to do. The issue that I'm having is that I have to attend jury duty right in the middle of the day when I should be looking for employment. Is there anything can be done? I'm all for doing my civic duty, but I have a family I need to provide for. Sorry, to burden this with you, but I'm really in a bind here.
Juror Number 10 spoke to the court on October 5. Discussions were made about, potentially, applying for benefits to see whether or not any benefits could be available, whether that would make a difference. He seemed to indicate it would. Since October 5, the only thing I heard from Juror Number 10 was this morning, where he indicated he was not feeling well and could not attend court.
On October 9, 2020, the provincial government issued a press release involving implementing additional health measures in three specific areas of the Province of Ontario, one such place is the City of Ottawa, and the measures were, "Effective Saturday," - I am quoting from the press release.
Effective Saturday, October 10, 2020, at 12:01 a.m., these targeted measures are being implemented in Ottawa, Peel and Toronto as a result of their higher than average rates of transmission. Measures under a modified Stage 2 include: reducing limits for all social gatherings and organized public events to a maximum of 10 people indoors and 25 people outdoors, where physical distancing can be maintained. The two limits may not be combined for an indoor/outdoor event.
The Chief Justice of the Superior Court issued a memo to all participants in the criminal justice system that there was going to be a 28 day moratorium on the selection of any new jurors or the commencement of any new jury trials and that existing jury trials were to continue in the discretion of the trial judge.
Mr. Cavanagh, on behalf of the Crown, has made compelling arguments in opposition to the mistrial, including and most importantly in my view, the cost in human terms emotionally to the families of the victims, and in this case, particularly to Talal Al-Shammari. Despite those compelling arguments, it is with sincere regret and a sense of having little to any legitimate control over the unfortunate events of the last several weeks and the impact on the fairness of the trial process that I am compelled to declare a mistrial.
It is not one specific event that causes this. It is the cumulative effect, all acting in concert of:
- The close to seven months delay between the adjournment of March 16th and today's date.
- The reduction in the composition of the jury. The fact that, arguably, two of the ten remaining jurors will, for different reasons, have difficulty in concentrating even if conditions were ideal.
- The fact that we are in the throes of the second wave and, perhaps, worst wave in the Covid pandemic than when it originally started and the amplification of government restrictions.
All of these, act in concert. In my estimation they leave me with no choice but to declare a mistrial, and I am so doing.
And what I am going to do now counsel before we deal with where we go next is I am going to invite the jury in and explain what I just did.
MR. CAVANAGH: Thank you, Your Honour.
MR. FOORD: Thank you.
...JURY ENTERS (10:18 a.m.)
COURTROOM CLERK: Are all parties satisfied that all members of the jury are present with the exception of juror number 10?
MR. FOORD: Yes.
THE COURT: All right.
MR. CAVANAGH: Yes.
THE COURT: Thank you. Good morning, members of the jury. I've taken an extraordinary remedy today. I've declared a mistrial in this case. I'll explain what that is. There's been too many things for this to properly continue, in my estimation so I've taken an extraordinary remedy. It's called declaring a mistrial. It means your journey in this case is over. And what it does mean is we start another trial at another date. A new trial, a re-trial will be conducted next year. It's not something I did lightly. I know some of you must be disappointed. Some of you may even be a little bit relieved, given all the things we've been going through, but there's just too many things that have taken place in the last seven months almost since we, we heard any evidence in this case. It's been seven months actually. March 13, I think, was the last time we sat and heard any evidence. That was one factor. That's an extraordinary amount of time to bifurcate a trial, especially a jury trial, and then the increased problems with the pandemic, particularly in Ottawa - it's one of the hot spots right now, causes concern. And juror number 10 isn't here today. He wasn't feeling well. So I think it, it just came down to enough is enough. I want to thank you very much for your service. You went beyond the call of duty in, in hanging in there, but unfortunately I didn't see any choice but to do what I had to do today. All right. Thank you. And good luck with everything.
...JURY EXITS (10:21 a.m.)
THE COURT: Do we - we have dates already set. Were we going to try to canvass earlier dates? Was there any thought to that?
MR. CAVANAGH: Yeah, that's fine. I'm in another court, a preliminary hearing downstairs, Your Honour, in front of Justice Doody.
THE COURT: Well I'm going to suggest this. I mean if you, if you want to have - we could set something up in front of me through trial coordination. I know that there are dates set in September. Those dates are, are, are set aside for this. I don't know what's going to happen now because there are trials with juries who are supposed to be picked in the next 28 days. One of them's a homicide...
MR. CAVANAGH: Yeah.
THE COURT: ...with Mr., with Justice [indiscernible].
MR. CAVANAGH: Well that's....
THE COURT: ...and it's going ahead so...
MR. CAVANAGH: Yeah.
THE COURT: ...I'm going to suggest we wait at least until these 28 days have passed. We know we have dates, we have dates in September, Mr. Buoc, right? So, that's - and but we could try to get earlier dates.
ALAM BUOC: That sounds good, Your Honour.
THE COURT: Yeah. All right.
MR. CAVANAGH: Thank you. So I guess I'd make three points. One, the Crown continues to be willing to proceed, judge alone, but I understand that....
THE COURT: I, oh and I'm fully willing to go judge alone, Mr. Cavanagh. I've made that clear, abundantly clear.
MR. CAVANAGH: Thank you.
THE COURT: But Mr. Buoc has made clear he does not want to.
MR. CAVANAGH: Secondly....
THE COURT: That continues, right, Mr. Buoc?
ALAM BUOC: Yes, Your Honour.
THE COURT: Okay.
MR. CAVANAGH: Sorry, I'm sorry. Secondly, just in terms of Jordan, Your Honour covered everything quite succinctly and eloquently a moment ago, but I would just - this might be argued at some point and so at this point in time I would observe that the Crown would characterize this as an unusual circumstance where Mr. Buoc was ready to proceed, amicus was ready to proceed, the witnesses were ready to proceed, the jury was ready to proceed on August 31st, everyone was ready to proceed...
THE COURT: Absolutely.
MR. CAVANAGH: ...the Court was ready to proceed, the Crown was ready to proceed, but court services and the other persons responsible dealing for the first time with an, a pandemic, were not able to get the court facilities ready in time, over the months from March to August, and we see that as a major factor in that in the time from August 31st forward we feel the trial could have been completed. Lastly, and the last point, Your Honour, is that Your Honour gave a ruling regarding remote testimony from various witnesses. We were contacted by the Centre of Forensic Sciences, which this is a hot topic for them. I don't know if Your Honour has a decision or will have a decision. If not....
THE COURT: Probably not now. I mean that decision becomes mute because...
MR. CAVANAGH: Thank you.
THE COURT: ...we don't know what we're going to do in a - whenever we start up again.
MR. CAVANAGH: I'm, I'm wondering, like....
THE COURT: If, if we start up again and you continue to want to do that then I'll issue a formal ruling.
MR. CAVANAGH: Okay, thank you. I'm wondering if the court will give us permission to order the transcript and provide that to the Centre of Forensic Sciences...
THE COURT: Yeah.
MR. CAVANAGH: ...because they may wish to rely...
THE COURT: Sure.
MR. CAVANAGH: ...upon it in other instances.
THE COURT: We can order that. We can do that.
MR. CAVANAGH: Thank you.
ALAM BUOC: Your Honour, sorry, I just have a couple of requests. That just, since now there's two things I'm going to need for the new trial. Just the transcripts.
THE COURT: I'm sorry?
ALAM BUOC: There's two things that, that I will need for the next trial.
THE COURT: Yes.
ALAM BUOC: Would be the transcripts and just the latest Criminal Code, when the time come - the, the sooner the better, right.
THE COURT: The transcripts of what?
ALAM BUOC: Pretty much the transcripts of - I already - I've already been provided with a lot - Mr. Talal Al-Shimmari, and Ms. Gornall.
THE COURT: Yeah.
ALAM BUOC: I'm just going to need pretty much all the transcripts from the proceedings.
THE COURT: Well, I'm not sure I'm going to order all the transcripts. You're going to have to indicate which ones and why. I, I - you, you want the transcripts of every single witness in the....
ALAM BUOC: Yes. Because now all I have is my notes, right? And I....
THE COURT: Okay, well now I'm going to...
ALAM BUOC: My, my memory's lots of....
THE COURT: ...I'll hear from counsel on whether that should be ordered today, or whether I should consider it. I mean....
ALAM BUOC: Yes, 'cause I know time is precious for Your Honour and when the time comes I'd rather have that as soon as possible so when September comes I'm - I'll be ready to go and not have any other delays.
THE COURT: Okay. I, I - your request is noted Mr. Buoc. All right.
ALAM BUOC: Yes, and just, I would request the latest Criminal Code too, please, Your Honour.
THE COURT: That's easy. I, I have one I can give. I think Mr. Foood can give you one - the 2021 Code?
MR. FOORD: Yeah. I'll take care of that.
THE COURT: Yeah.
ALAM BUOC: Thank you, Your Honour.
THE COURT: For sure.
MR. CAVANAGH: Subject to the Court's views, the Crown's going to have to order copies of all the transcripts for all the witness in any event, and given the history of trying - of difficulty in getting transcripts it seems that if the Court's inclined it would be appropriate to make that order...
THE COURT: Yeah.
MR. CAVANAGH: ....as soon as....
THE COURT: Right. I think I can make that right now.
MR. CAVANAGH: ...possible. Thank you.
THE COURT: Yeah, right. I think I'm going to make it right now, that all of the transcripts of trial number - the...
MR. CAVANAGH: Thank you.
THE COURT: ...trial that we started in February can be ordered, including copies for Mr. Buoc. I note that we already have the transcripts of the testimony of Talal Al-Shammari, which was...
MR. CAVANAGH: Right.
THE COURT: ...eight, eight days of evidence.
ALAM BUOC: And Ms., Ms. Gornall. I have Ms. Gornall, and Ms. Dalturn(ph).
THE COURT: All right. So it's whatever - all of the transcripts of the balance of the witnesses for the trial that was started in February. I'll order it and you get copies of those. And that's now. The order's effective today. All right.
ALAM BUOC: I just want to be clear that I would get a copy of that as well so I can....
THE COURT: Yes.
ALAM BUOC: Thank you.
THE COURT: For the Crown, Mr. Foord and Mr. Buoc. And I gather we're all going to continue on the next trial. Mr. Foord, you're going to continue?
MR. FOORD: I think so. I think that's...
THE COURT: Yeah. All right.
MR. FOORD: ...that's the plan.
THE COURT: Okay. Well with respect to, trying to get an earlier date than September, I, I'm going to suggest we revisit that after the 28 days.
MR. CAVANAGH: Yes. That, that makes sense, Your Honour.
THE COURT: Just because we might be in a better position to know - some things may change in terms of resolutions and things of that nature in 28 days. I'm not sure. I have, I have a homicide trial that I'm supposed to start on February 1st for eight weeks, which is what this would be, eight weeks. So I'm not sure whether or not there's a, a room to try and reschedule. That, that's a trial where the person's in custody and is sensitive as well, but still my, my, my flexibility in the current circumstances is I will be very flexible in terms of dealing with this at any time prior to September and/or in September.
MR. CAVANAGH: Thank you.
THE COURT: Thank you. All right. Thank you.
ALAM BUOC: Thank you, Your Honour.
COURTROOM CLERK: Your Honour...
THE COURT: Yeah.
COURTROOM CLERK: ...is there a future date?
THE COURT: The remand date, we should have a remand date for Mr. Buoc. I'm going to suggest we set a date today...
MR. CAVANAGH: Yes.
THE COURT: ...to reconvene, in December, maybe.
MR. CAVANAGH: Yes. That, that's a good idea.
THE COURT: And to determine whether or not an earlier - any, any possibility of an earlier date. So we're going to reconvene in the form of a trial management conference, say December 7th, Monday December 7th...
MR. CAVANAGH: Can I just have a moment, Your Honour?
THE COURT: ...ten o'clock. Does that work for everybody? I
MR. CAVANAGH: I'm just checking. If I can just have a - it's going to take me about two minutes here to....
THE COURT: Sure, sure. I think I'm sitting that week. I'm doing something else but I'll just - it doesn't have to be that day.
MR. CAVANAGH: My password expired, so more like four minutes. December 7th's fine, thank you, Your Honour.
THE COURT: All right. The matter is adjourned to December 7th, ten o'clock, for trial management conference. Thank you.
...WHEREUPON THESE PROCEEDINGS ARE ADJOURNED
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act
I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. BUOC, in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411-CR37-20201013-080713-30-MARANGRO.dcr, which has been certified in Form 1.
March 22, 2021 (Date)